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Authoritarian Constitutionalism in Facebookland

David Pozen is a professor at Columbia Law School and the inaugural visiting scholar at the Knight Institute.

In an article published earlier this year, Kate Klonick memorably described social media platforms like Facebook as the “New Governors” of online speech. These platforms operate with significant legal discretion. Because of the state action doctrine, they are generally assumed to be unconstrained by the First Amendment. Because of Section 230 of the Communications Decency Act, they enjoy broad immunity from liability for the user-generated content posted on their sites. Nevertheless, Klonick showed, these platforms have created intricate rules for determining whether and how to limit the circulation of material that is arguably offensive or obscene, rules that in some respects appear to track U.S. free speech norms. By studying internal Facebook documents and interviewing employees, Klonick began to illuminate the mysterious world of social media content moderation.

Klonick’s latest essay pushes this project further. In “Facebook v. Sullivan,” she investigates Facebook’s use of the “public figure” and “newsworthiness” concepts in its content moderation decisions. Again drawing heavily on interviews, Klonick recounts how Facebook policymakers first turned to the public figure concept in an effort to preserve robust debate on matters of widespread concern while cracking down on the cyberbullying of “private” individuals. Newsworthiness, meanwhile, emerged over time as a kind of all-purpose free speech safety valve, invoked to justify keeping up content that would otherwise be removable on any number of grounds. Defining public figures and newsworthiness in an attractive yet administrable manner has been a constant challenge for Facebook; the relevant First Amendment case law is no model of clarity and, even if it were, translating it to a platform of Facebook’s scale would be far from straightforward. Klonick walks us down the somewhat mazy path the company has traveled to arrive at its current approach.

Klonick’s essay—the seventh and final installment in the Emerging Threats series that I have been editing for the Knight Institute—offers many intriguing observations about Facebook’s “free speech doctrine” and its relationship to First Amendment law and communications torts. But if we step back from the details, how should we understand the overall content moderation regime that Klonick is limning? At one point in the essay, Klonick proposes that we think of it as “a common law system,” given the way Facebook’s speech policies evolve “in response to new factual scenarios that present themselves and in response to feedback from outside observers.” The common law analogy is appealing on several levels. It highlights the incremental, case-by-case development that some of these policies have undergone, and it implies a certain conceptual and normative integrity, an immanent rationality, to this evolutionary process. Facebook’s free speech doctrine, the common law analogy might be taken to suggest, has been working itself pure.

Common law systems are generally understood to involve (i) formally independent dispute resolution bodies, paradigmatically courts, that issue (ii) precedential, (iii) written decisions. As Klonick’s essay makes clear, however, Facebook’s content moderation regime contains none of these features. The regulators and adjudicators are one and the same, and the little we know about how speech disputes get resolved and speech policies get changed at Facebook is thanks in no small part to Klonick’s own sleuthing.

A very different analogy thus seems equally available: Perhaps Facebook’s content moderation regime is less like a common law system than like a system of authoritarian or absolutist constitutionalism. Authoritarian constitutionalism, as Alexander Somek describes it, accepts many governance features of constitutional democracy “with the noteworthy exception of … democracy itself.” The absence of meaningful democratic accountability is justified “by pointing to a goal—the goal of social integration”—whose attainment would allegedly “be seriously undermined if co-operation were sought with [the legislature] or civil society.” Absolutist constitutionalism, in Mark Tushnet’s formulation, occurs when “a single decisionmaker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end, decides on a course of action in the decisionmaker’s sole discretion, unchecked by any other institutions.”

The analogy to authoritarian/absolutist constitutionalism calls attention to the high stakes of Facebook’s regulatory choices and to the awesome power the company wields over its digital subjects as a “sovereign” of cyberspace. It also foregrounds the tension between Facebook’s seemingly sincere concern for free speech values and its explicit aspiration to make users feel socially safe and “connected” (and hence to maximize the time they spend on the site), a tension that is shaped by market forces but ultimately resolved by benevolent leader and controlling shareholder Zuckerberg.

There is a jarring scene in Klonick’s essay, in which a photograph from the Boston Marathon bombing that is “graphically violent” within the meaning of Facebook’s rules is dutifully taken down by content moderators, only to be put back up by unnamed executives on account of its newsworthiness. These executives may have had good intentions, and they may even have made the right call. The episode is nonetheless a reminder of the potential for arbitrary and cynical assertions of authority from on high in Facebookland—and of the potential disconnect between the policies that Facebook adopts and the policies that a more democratic alternative would generate.

Systems of authoritarian constitutionalism and absolutist constitutionalism are not lawless. But their commitment to civil liberties and the public interest is contingent, instrumental, fragile. If one of these models supplies the most apt analogy for Facebook’s regulation of online speech, then the crucial tasks for reformers might well have less to do with refining the company’s content moderation rules than with resisting its structural stranglehold over digital media.

Three response pieces identify additional concerns raised by Facebook’s content moderation practices. Enrique Armijo argues that First Amendment law on “public figures” can and should be embraced by Facebook and Twitter, but that constitutional protections for anonymous speech become far more frightening when exported to these platforms. To the extent that First Amendment law has predisposed platform architects to be tolerant of anonymous speech, Armijo suggests, it has led them disastrously astray.

Amy Gajda points out that Facebook’s “newsworthiness” determinations have the potential to affect not only millions of Facebook users, at great cost to privacy values, but also an untold number of journalists. Given courts’ unwillingness to define newsworthiness when reviewing privacy claims, Facebook’s “Community Standards” could become a touchstone in future media litigation unless and until judges become more assertive in this area.

Finally, Sarah Haan reminds us that Facebook’s decisions about how to regulate speech are inevitably influenced by its profit motive. Indeed, Facebook admits as much. Maintaining a prosocial expressive environment, Haan observes, is difficult and expensive, and there is little reason to expect Facebook to continue to privilege the preferences of American customers as its business model becomes increasingly focused on other parts of the globe.

For thoseofus who worry about the recent direction of U.S. free speech doctrine, Haan’s invitation to imagine a future Facebook less beholden to First Amendment ideology is also an invitation to imagine a range of new approaches to online content moderation and social media regulation. And that is precisely what the Knight Institute’s next visiting scholar, Jamal Greene, will be asking academics and advocates to do in a forthcoming paper series.

The Emerging Threats series invites leading thinkers to identify and grapple with newly arising or intensifying structural threats to the system of free expression.